Overdue law repeals or alterations, inadequacies in legislative techniques and the involvement of different bodies in the law-making process combine to create inconsistencies in China’s labor law, according to law experts.
Most people, when asked “According to Chinese labor law, what's the maximum number of hours a week a person has to work?” respond with “40 hours”, as laid out in The State Council’s Regulation on Employees’ Working Time: “Employees shall work 8 hours per day and 40 hours per week.”
Article 36 of the Labor Law of China, however, has it that the maximum working hours per week should be 44 hours.
Although it is generally accepted in practice that a workweek should be no longer than 40 hours, the Labor Law’s stipulation, of no more than 44 hours per week, still applies as the law has greater legal validity than the State Council’s regulation, said Li Wenjing, assistant researcher with the Institute of Labor Science Studies of the Ministry of Human Resources and Social Security of China, in an interview with newspaper Legal Daily.
As to how to address the working hours inconsistency, Li proposed that the Article in question should be modified to give the State Council the authority to make statutory a specific working hours system.
“Inconsistencies in China’s labor laws and regulations are rather common,” said Shen Jianfeng, deputy dean of the Law School of the China Institute of Industrial Relations. As for the reasons behind the anomalies, he noted that the repeal or altering of existing laws and regulations becomes overdue as new laws come into effect, different bodies are drafting laws or rules on the same subject and some of the legislative techniques used are inadequate.
To resolve these inconsistencies, Shen argued, a uniform legislative policy should be enacted throughout the law-making process; repealing, altering and passing laws should proceed together, and related laws and rules, especially at a lower level, should be re-examined after a new law is passed.
“Although it is an urgent and arduous task to re-examine the different labor laws and rules, efforts must be made to improve the technique of the application of a law as well”, Shen said. The Legislation Law has established some rules to solve the conflict of laws.
“But such rules are incapable of solving the conflicts between laws that already exist, due to the difficulties in invoking and executing them. Therefore, from the perspective of improving the mechanism, we should improve the review system of legal norms in China,” the deputy dean said.
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